MALTREATMENT INVESTIGATION MEMORANDUM
Office of Inspector General, Licensing Division
Public Information

Minnesota Statutes, section 626.557, subdivision 1 states, “The legislature declares that the public policy of this state is to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment.”

1067244-SUD (Substance Use Disorder)

Investigator(s):

Beth Virden
Minnesota Department of Human Services
Office of Inspector General
Licensing Division
PO Box 64242
Saint Paul, Minnesota 55164-0242
651-431-6572

beth.virden@state.mn.us

Suspected Maltreatment Reported:

Allegation One: It was reported that a staff person (SP1) had sexual contact with a vulnerable adult (VA) at the facility.

Allegation Two: It was reported that a staff person (SP2) had sexual contact with the VA at the facility.

Allegations One and Two Date(s) of Incident(s): Ongoing between July 2022 and February 2023, exact dates unknown

Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (b), and Minnesota Statutes, section 626.5572, subdivision 15, and subdivision 2, paragraph (c); and subdivision 17, paragraph (a):

Any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast.

The failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct.

Summary of Findings:

Pertinent information was obtained during a site visit conducted on December 27, 2023; from documentation at the facility and law enforcement records; and through interviews conducted with the VA and facility staff persons (SP1, SP2, P1, and P2).

In July 2022, the VA moved into the facility seeking supports and services relating to his/her substance use disorder. The VA wanted help developing relapse prevention skills and obtaining housing. The facility provided individual and group therapy or treatment sessions, supervision, recreation, medication management, etc.

The facility was a one-story, stand-alone building located in a residential neighborhood. SP1 worked the evening shift. SP2 worked the overnight shift.

The facility’s policies and procedures regarding staff-client boundaries and relationships provided the following information:

· The facility prohibited the development of personal or sexual relationships with clients during the period the client was receiving psychotherapy or within the two-year period following the date of the last psychotherapy session.

· Employees must maintain an objective, non-possessive relationship with clients and actively discourage a client's dependency upon the employee for the satisfaction of any physical, psychological, sexual, financial, spiritual, or emotional needs, except which was clearly essential to the provision of service.

· Employees should assume professional responsibility to remedy incompetence and unethical practices of another employee, program, or agency.

Facility documentation stated SP1, SP2, P1, and P2 received training on the facility’s policies and procedures regarding staff-client boundaries and relationships, and the Reporting of Maltreatment of Vulnerable Adults Act.

Allegation One: It was reported that SP1 had sexual contact with the VA at the facility.

A Washington County Sheriff’s Office Report provided the following information regarding the VA’s statements about SP1: [Note: Information regarding SP1’s interview with law enforcement is forthcoming in this report.]

· The VA told a psychologist, a corrections investigator, and a law enforcement officer (LEO1) that while s/he was receiving services at the facility, s/he became “romantically involved” with SP1.

· In July 2022, the VA moved into the facility and met SP1. They did not know each other prior.

· The VA and SP1 went on long walks and talked or sat in the staff office talking. They “became close … rather quickly.”

· In late August or early September 2022, “their relationship became physical.” The VA would “sneak out” at night and walk along the nearby road to be picked up by SP1 when s/he finished work. They would then sit in SP1’s car, kissing and hugging.

· According to the VA, SP2 worked the shift after SP1 and was aware the VA was sneaking out to meet SP1. “[SP2] knew about [the VA’s and SP1’s] relationship.”

· Twice, SP1 brought the VA to SP1’s apartment where they had sexual intercourse. The VA provided SP1’s address to LEO1 and described the surrounding area to SP1’s house. LEO1 later confirmed this information to be accurate. The VA said that s/he also had sexual intercourse with SP1 twice in the basement of the facility.

· SP1 gave the VA a marijuana vape pen while s/he was at the facility. The VA also connected SP1 with a methamphetamine (meth) dealer and told LEO1, “[SP1] was about to bring me meth.” [Note: The Washington County Sheriff’s Office Report did not state whether SP1 provided methamphetamine to the VA.]

· At some point after the VA discharged from the facility, s/he ended up incarcerated for unrelated reasons. SP1 added funds to the VA’s account in prison and the two also spoke on the inmate phones. The VA provided SP1’s phone number to LEO1, which LEO1 later confirmed to be accurate.

· In February 2023, SP1 ended their relationship. SP1 delivered a backpack of the VA’s belongings to the VA’s family member’s house.

· The VA had no contact with SP1 since February 2023.

· The VA added that when s/he initially began receiving services at the facility, s/he was “serious” about getting sober. At that time, the VA had a job and his/her own apartment. The VA wanted to be sober to “live on a clean path.” However, SP1’s relationship with the VA caused him/her “to give up on that and it sent [him/her] back down the road of addiction.”

The VA provided the following additional information to this investigator:

· SP1 brought methamphetamine and a marijuana vape pen into the facility for the VA. The VA used both drugs at least once, and then gave the marijuana vape pen to another client.

· The sexual contact between the VA and SP1 was “a mutual thing.” According to the VA, their relationship started when the VA “got a vibe” from SP1 and wrote SP1 a note. The note was “explaining where I thought things were going and (for SP1) to let me know if I’m off base … [SP1] confirmed I was right.”

· SP1 left the VA notes at the staff desk, which the VA described as “love notes.” The VA provided copies of these notes to this investigator. The notes were written as though they were phone messages from the VA’s boy/girlfriend (or “bf/gf”). According to the VA, the notes were from SP1.

· The notes included the following, undated and unsigned:

o [bf/gf] called – [s/he] said to please calm down + that [the VA’s nickname or alter ego] can come out tomorrow when I’m off + also – you can handle me like you did that volleyball *wink* *wink*

o [bf/gf] called – [s/he] says to take your hair out or you won’t get any [genitalia slang word]

o [bf/gf] called – love you honey [heart] [ heart]

o [bf/gf] called – I’m not great w/words but I am so in love w/u + I am so proud of you

o Sunday would work better – we’ll settle on that, K? That way we can plan it better + I can shower + be fresh clean for my birthday *wink* *wink* [Note: SP1’s birthday occurred during the time when the VA was receiving services at the facility.]

· The VA said that SP1 never told him/her that s/he did not want to engage in the relationship or sexual contact and never told the VA that s/he felt threatened.

· SP2 was “in on” the VA’s relationship with SP1. The VA had to sneak out through the staff office exterior door to avoid being seen on the facility’s main door camera system. When SP1 got off work, SP2 let the VA out the office door and then when SP1 dropped the VA off later that night, SP2 opened the office door to let the VA back inside. “[SP2] coordinated that.”

SP2 provided the following information:

· At the time of this investigator’s phone call with SP2, SP2 said that SP1 contacted him/her “a few months ago” stating that “someone, like you (this investigator)” might reach out asking questions about SP1’s relationship with the VA. SP1 told SP2 to “not say anything” or to say “[SP1] was forced into it.” “But, (according to SP2) that’s not the case at all. They were in a relationship.”

· SP2 and SP1 were “very close” at the time they worked together at the facility. SP1 told SP2 that s/he was “in love” with the VA. “Nothing was forced at all.” When the VA went to prison for unrelated matters, SP1 was writing and calling him/her.

· SP2 worked the shift after SP1. When SP1’s shift ended, the VA would leave the facility and meet SP1 on the road. They had sex in SP1’s car and SP1 brought the VA to SP1’s apartment.

· The VA would sneak out the front door and leave a stick in the door so that s/he could get back inside. “I couldn’t stop [him/her] but I also wasn’t like, ‘Go ahead.’” SP2 did not believe s/he could do anything to stop what was happening. SP2 did not tell anyone because s/he was worried about his/her own job status.

· SP2 was aware the VA asked SP1 to bring him/her drugs but SP2 did not know if SP1 did or not.

· When the VA was at the facility, “all night” s/he would sit on the client phone talking to SP1, who was at home or finished with work for the day.

A Washington County Sheriff’s Office Report provided the following information:

· Two separate interviews were conducted with SP1 by LEO1 and then again by another law enforcement officer (LEO2).

· The first interview occurred on July 12, 2023, with LEO1, and included the following information:

o SP1 told LEO1 that the VA was “aggressive.” There was nothing specific that the VA did or said to SP1. There were “no direct threats” to SP1. Rather, “it was just how [the VA] carried [him/herself] and [his/her] demeanor.” “[The VA’s] general attitude and behavior is aggressive.” The VA got into fights at the facility with other clients.

o SP1 told LEO1 that s/he would pick the VA up on a sideroad near the facility and they would kiss in SP1’s car.

o They had sexual intercourse one time at SP1’s apartment. SP1 initially told LEO1 that the sexual intercourse occurred between the VA’s stays at the facility; however, later told LEO1 that it occurred while the VA was receiving services at the facility. SP1 said that s/he and the VA had sexual intercourse only the one time at SP1’s apartment and did not have sexual contact at the facility.

o “[SP1] also confirmed that [the VA] got back into the building afterwards through [the staff] door and that [SP1’s] friend, [SP2], was working during that time.”

o SP1 said that s/he did not provide the VA with any drugs at the facility.

· According to LEO1, between July 18 and September 14, 2023, s/he made more than one attempt to contact the facility about the allegations; however, the facility was “unresponsive.” On November 17, 2023, an administrative staff person reached out and requested LEO1 submit a search warrant for information; this was then done.

· On December 6, 2023, LEO1 was notified that new information was submitted to the Minnesota Adult Abuse Reporting Center regarding this same matter. The information stated, “[SP1] reported … [s/he] was raped by [the VA] at [SP1’s] apartment after seeing [the VA] walking away from the facility one night. [SP1] also said the subsequent sexual contact with [the VA] was out of fear.”

· LEO1 noted, “At no time during my interview with [SP1] did [s/he] say anything about being raped by [the VA] and described the initial encounter’s details a lot different than [s/he] told me. The report also states [SP1] had been trying to get ahold of me but I had not returned [his/her] calls. I have no record of receiving any calls from [SP1].” (Note: LEO1 told this investigator, “Now [SP1] is saying [s/he] was raped by [the VA]. [SP1] never said that initially or throughout this process.” “[SP1 said] nothing to me.”)

· On December 7, 2023, LEO2 re-interviewed SP1, and this included the following:

o One night, when SP1 was headed home from work, s/he saw the VA walking along the road and pulled over to check on him/her. The passenger window was open, and the VA reached into the car and let him/her in. SP1 was “scared” of telling the VA, “No.” “[S/he] felt like [his/her] best option was to bring [the VA] to [SP1’s] house … [The VA] told [SP1] [s/he] wanted to go to [SP1’s] house.” “[The VA] made a comment about the ‘ease of finding out where people live.’ [SP1] said [s/he] was scared because of [the VA’s] violence … [SP1] did not feel safe telling [the VA] no.”

o Once there, they started to watch a movie. SP1’s television was in his/her bedroom and so they lay on SP1’s bed to watch the movie. During this time, the VA started to kiss and touch SP1, and they had sexual intercourse. “[SP1] didn't want to (have sexual intercourse with the VA) but was scared not to go along with it.”

o SP1 said that s/he and the VA had sexual intercourse at SP1’s apartment twice and kissed or “made out” three times outside of the facility.

o “[SP1] stated [s/he] was afraid that if [s/he] didn't do those actions, [the VA] would kill [SP1]. [SP1] admits it's stupid, but [she's] also fearful that [the VA] would do something harmful to [SP1’s] cat. I asked what actions [the VA] has done to make [SP1] afraid. [SP1] used examples that [s/he] had witnessed between [the VA] and other patients at the treatment facility. [SP1] didn't say [the VA] ever threatened to physically harm [him/her].”

o “[LEO2] asked why [SP1] never informed [his/her] boss or called the police if [s/he] was in so much fear of [the VA]. [SP1] said they were so short staffed at the facility and [s/he] didn't want to bother [his/her] boss who already had so much to do. [SP1] also mentioned that [s/he] didn't fully grasp or understand at the time that this was rape or sexual assault.”

o SP1 declined to pursue criminal charges against the VA.

SP1 told this investigator that there was miscommunication when speaking to LEO1 versus LEO2. SP1 said that when speaking to LEO1, s/he said that s/he did not want to have sexual intercourse with the VA. However, s/he did not use the word, “rape,” when speaking to LEO1. SP1 explained that, at that time, s/he did not understand that the situation with the VA was considered rape. SP1 told this investigator that s/he told the VA that s/he did not want to have sexual intercourse, but that they did anyhow. SP1 reiterated that s/he was “fucking scared all the time” about the VA returning to SP1’s house uninvited. “[The VA] is fucking crazy … I’m deathly afraid of [the VA].” “[The VA] threatened to bring people to my house. The way [his/her] personality is, I wouldn’t put it past [him/her] … Has [s/he] ever said, ‘I’m going to kill you,’ no, but [his/her] actions and the type of things [s/he’d] say.”

P1 and P2 provided the following information:

· P2 reviewed facility documentation with this investigator that showed the VA tested positive for methamphetamine while at the facility, more than once. The VA tested negative for marijuana while at the facility.

· P1 and P2 were each not aware of prior concerns with SP1 having inappropriate contact with the VA. P2 said that SP1 was “extremely good with boundaries” and had since been promoted to a position with greater responsibility. P2 was aware of times when SP1 redirected disrespectful behaviors, shut down inappropriate statements, and did not disclose personal information to clients.

· P2 said that staff, including SP1, were allowed to attend therapeutic or nature walks with clients. This typically occurred with more than one staff and more than one client. It was not common practice for there to only be one staff on the walk but that did not mean it never happened.

· P2 said that clients were allowed in the staff office to make phone calls and/or to deescalate behaviors. However, the door should remain open and there should be more than one staff present. P2 was never informed of concerns of SP1 having clients sit in the office for unnecessary reasons.

Conclusion for Allegation One:

A. Maltreatment:

Regarding sexual abuse:

Information obtained showed that there was sexual contact between SP1 and the VA. The VA and SP2 each provided information that the relationship and/or contact was consensual. SP1 provided conflicting information. In July 2023, SP1 acknowledged his/her sexual relationship with the VA and LEO1 noted. “At no time during my interview with [SP1] did [s/he] say anything about being raped by [the VA] and described the initial encounter’s details a lot different than [s/he] told me. The report also states [SP1] had been trying to get ahold of me but I had not returned [his/her] calls. I have no record of receiving any calls from [SP1].” Then in December 2023, SP1 told LEO2 that the VA raped him/her and that the sexual contact was not consensual. SP1 also said that s/he was “scared” and “afraid” which allowed the relationship to occur and continue.

The VA said that SP1 never said anything to him/her about not wanting to engage in or to continue the relationship. SP2 also provided information that the relationship was “not forced.” SP2 said that at the outset of this investigation, SP1 called and told him/her to “not say anything” about the relationship or to say that it was forced. However, SP2 reiterated that it was not forced but rather, SP1 was “in love” with the VA.

The VA also had “love notes,” which, although they were not signed by SP1, appeared to be written by someone who was aware of what the VA was doing or wearing at the facility (e.g., references to the VA’s volleyball skills and the VA’s hairstyle), and contained statements about “love” with the VA. The VA stated that these notes were from SP1.

Given the consistent and similar information provided by the VA and SP2 and that SP1 had reason to minimize his/her actions for fear of repercussions, it was determined that the VA’s and SP2’s accounts were more credible.

Therefore, there was a preponderance of the evidence that SP1’s conduct included sexual contact with the VA while s/he was a client receiving services at the facility.

It was determined that sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast).

Regarding neglect:

The VA’s account also included information about SP1 providing methamphetamine and marijuana, which was inconsistent with the standards of a professional caregiver in a facility licensed by the Department of Human Services and encouraged the VA to engage illegal activities.

The VA, SP1, and SP2 also provided information that SP2 was aware of the ongoing relationship between SP1 and the VA, and that at least once, SP2 “coordinated” the VA accessing the staff door to ease his/her departure and return from his/her outings with SP1.

Given that the VA had a history of a substance use disorder, it was reasonable that the VA would continue to need supports to develop and maintain the necessary life and social skills to maintain sobriety. SP1’s and SP2’s interactions with the VA likely hindered his/her ability to have a consistent understanding of the parameters of a therapeutic relationship which could interfere with other individuals’ attempts to provide him/her with therapeutic services, both now and in the future. Therefore, there was a preponderance of the evidence SP1’s and SP2’s interactions with the VA were detrimental to the VA’s ongoing mental health and were a failure to provide the VA with reasonable and necessary care or services.

It was determined that neglect occurred (the failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct).

B. Responsibility pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (c):

When determining whether the facility or individual is the responsible party for substantiated maltreatment or whether both the facility and the individual are responsible for substantiated maltreatment, the lead agency shall consider at least the following mitigating factors:

(1) whether the actions of the facility or the individual caregivers were in accordance with, and followed the terms of, an erroneous physician order, prescription, resident care plan, or directive. This is not a mitigating factor when the facility or caregiver is responsible for the issuance of the erroneous order, prescription, plan, or directive or knows or should have known of the errors and took no reasonable measures to correct the defect before administering care;

(2) the comparative responsibility between the facility, other caregivers, and requirements placed upon the employee, including but not limited to, the facility’s compliance with related regulatory standards and factors such as the adequacy of facility policies and procedures, the adequacy of facility training, the adequacy of an individual’s participation in the training, the adequacy of caregiver supervision, the adequacy of facility staffing levels, and a consideration of the scope of the individual employee’s authority; and

(3) whether the facility or individual followed professional standards in exercising professional judgment.

SP1 and SP2 were responsible for the care and supervision of the VA. SP1 and SP2 received training on the facility’s policies and procedures regarding staff-client boundaries and relationships, and the Reporting of Maltreatment of Vulnerable Adults Act.

SP1 and SP2 were responsible for maltreatment of the VA.

C. Recurring and/or Serious Maltreatment:

The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.”  Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. 

Minnesota Statutes, section 245C.02, subdivision 16, states:

“Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment.

Minnesota Statutes, section 245C.02, subdivision 18, states:

"Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury.  For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment.  For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke.  Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult.

It was determined that the substantiated sexual abuse and neglect for which SP1 was responsible was recurring and serious maltreatment. SP1 engaged in sexual contact with the VA at least twice.

SP1 was disqualified from providing direct contact services.

It was determined that the substantiated neglect for which SP2 was responsible did not meet statutory criteria to be determined as recurring or serious. SP2 was responsible for a pattern of behavior for which there was no information the VA sustained a serious injury which reasonably required the care of a physician whether or not the care of a physician was sought.

Allegation Two: It was reported that SP2 had sexual contact with the VA at the facility.

The VA provided the following information:

· Around late September 2022, the VA was outside with SP2. They were standing around the facility’s weekend bonfire, smoking marijuana and making smores. SP2 had a history of bringing marijuana into the facility and seeking clients to smoke with him/her outside. On this night, their interactions became “flirtatious.” The two went back inside the facility, into the kitchen, where SP2 “performed oral sex on” the VA.

· According to the VA, the next day, SP2 told P1 about what happened the night prior and also told P1 about the VA’s relationship with SP1 (see Allegation One). According to the VA, P1 never asked him/her about it. “No further action was taken.”

· Note: LEO1 did not have SP2’s full name and did not interview or investigate SP2 any further for the police investigation.

P1 and P2 provided the following information:

· P1 and P2 were each not aware of prior concerns with SP2 having inappropriate contact with the VA.

· P1 was never approached by anyone about SP2 (or SP1) having sexual contact with the VA. P1 was approached with a concern that SP2 was giving clients their phones back at times when it was not approved and then allowing the clients to sit in the office with SP2. This was for multiple clients, not just the VA. At that time, a supervisory staff person told SP2 to stop doing this, and as far as P1 knew, it stopped.

SP2 said that s/he did not smoke marijuana with the VA or any other client and that s/he did not have sexual contact with the VA or any other client. SP2 did not know why someone would state otherwise.

Conclusion for Allegation Two:

The VA stated that s/he had sexual contact with SP2 and that SP2 told P1 about the interaction. However, SP2 denied the allegations and P1 did not have any information to support the VA’s account that this incident had been reported to P1. Given the conflicting information provided by the VA and SP2, and that P1’s account did not support what the VA said, there was not a preponderance of the evidence whether SP2 had sexual contact with the VA.

It was not determined whether sexual abuse occurred (any sexual contact or penetration between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility. Sexual contact is defined by Minnesota Statutes, section 609.341, as the intentional touching of the intimate parts with sexual or aggressive intent. 'Intimate parts' includes the primary genital area, groin, inner thigh, buttocks, and breast).

Action Taken by Facility:

The facility completed an internal review and determined that policies and procedures were adequate and followed. SP2 was no longer employed. SP1 was removed from having direct contact with clients until a further investigation was completed.

Action Taken by Department of Human Services, Office of Inspector General:

SP1 was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that SP1 was responsible for maltreatment and the disqualification of SP1 are each subject to appeal.

SP2 was not disqualified from providing direct care services as a result of the maltreatment determination in this report. However, SP2 was notified by the Office of Inspector General that any further substantiated act of maltreatment, whether or not the act meets the criteria for “serious,” will automatically meet the criteria for “recurring” and will result in the disqualification of SP2. The determination that SP2 was responsible for maltreatment is subject to appeal.

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